JUDGMENT NKINDA FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA CRIMINAL SESSIONS CASE NO. 75 OF 2023 REPUBLIC VERSUS NKINDA KILANGI @ FUSO & 7 OTHERS ………………….…ACCUSED JUDGMENT 25/11/2024 & 29/11/2024 E. L. NGIGWANA, J. The accused persons Nkinda Kilangi @ Fuso (1st accused), Kabigumila Theobard (2nd accused), Bundala Shabani (3rd accused), Liena Nginila (4th accused), Deogratius Faustine (5th accused), Salum Ntemwa (6th accused), Massaga Dotto (7th accused) and Mbilika Mathias (8th accused) stand charged with murder contrary to section 196 and 197 of the Penal Code, [Cap 16 R.E 2022], whereby the Prosecution alleged that the accused persons on the 3rd day of May 2022, at Kihobweke Village within Muleba District in Kagera 1 Region, with malice aforethought, did cause the death of Davis Chiguma@ Chief. All accused persons pleaded not guilty to the charge. At the trial, each accused person enjoyed the legal service of an advocate as follows; Mr. Joseph Bitakwate for 1st accused, Mr. Lameck Erasto for the 2nd accused, Mr. Rogate Assey for the 3rd accused, Ms. Theresia Bujiku for the 4th accused, Mr. Nathan Alex for the 5th accused, Mr. Mathias Rweyemamu for the 6th accused, Mr. Zedy Ally for the 7th accused and Mr. Frank Karoli for the 8th accused. The prosecution side appeared through Ms. Upendo Shemkole, Senior Learned State Attorney assisted by two other State Attorneys namely; Ms. Agnes Awino and Ms. Alice Mutungi. I take this opportunity to express my appreciation and thanks to the defence counsel and State Attorney for the republic for their commitment, determination, attendance, respective examination in chief, and cross- examination which in my view, went professionally and harmoniously. In support of the charge, the prosecution paraded ten (10) witnesses out of 21 listed during the committal and preliminary stages. The witnesses who appeared and testified are; Daniel Chacha (PW1) who is a medical Doctor, Justine James (PW2) who is a Chairman of Kihobweke Village, Justus 2 Maungo (PW3) who is the administrator of the deceased’s estate, Yuda Emmanuel (PW4) who is a peasant and resident of Kyamiorwa, SP Julius Laurent Mallya (PW5), the former OC-CID of Muleba. James Lukuba (PW6) who is a Chairman of Kyamiorwa “A”, Adestuta Kokurugambya Rugaibura (PW7), a justice of the peace, H354 D/CPL Samwel (PW8), G1759 D/Sgt Iddy (PW9) and H3947 D/CPL Petro (PW10). They also tendered seven (7) exhibits out of 16 exhibits listed in the said two stages. The exhibits tendered are; a Report on Post-Mortem examination (Exhibit 1), a Certificate of seizure concerning the seizure of 195 head of cattle (Exhibit P2), a Certificate of Seizure concerning a cell phone alleged to belong to the deceased (Exhibit P3), One small cell phone make Itel alleged to belong to the deceased (Exhibit P4), Ruling of the court concerning the prayer for disposal order of 195 head of cattle (Exhibit P5), Handing over document concerning the said 195 head of cattle between SP Mallya (PW5) and the administrator (PW3) of the deceased’s estate (Exhibit P6), Sketch map of the crime scene (Exhibit 7). Exhibit P8 is the statement Remigius Burchard tendered under section 34B of the Evidence Act, [Cap. 6 R.E 2022]. At the outset, I would like to state that in the instant case, there is no eye witness of the incident. The key documents that were listed by the 3 prosecution to link the accused persons with the offence of murder were cautioned statements of each accused person and extra-judicial statements of the 1st and 2nd accused persons. Indeed, there was an attempt through PW7 to tender an extra-judicial statement of the 1st accused but its admission was objected and the court sustained the objection owing to the reason that the extra-judicial statement of the 1st accused was completely recorded contrary to the Chief Justice Guide, and hence inadmissible. Through PW8, PW9, and PW10 the prosecution attempted to tender the cautioned statements of the 1st, 2nd, and 3rd accused persons, but all were objected to and the objections were sustained because the statements were recorded contrary to sections 50, 51, and 57 of the CPA. One of the rights that was not afforded to the 1st, 2nd, and 3rd accused persons was the right to read the statements or the same being read to them and being allowed to make changes or alterations. In Chamriho Kirenge @ Chamriho Julius versus Republic, Criminal Appeal No. 597 of 2017 [2022] TZCA 98 (7th March 2022) Tanzlii, it was stressed that; “Reading over the document is mandatory. It seeks to verify the correctness of the recorded statement lest some words might be imputed on the 4 appellant's mouth and incriminate him. Looking at the essence of the rights the provision seeks to protect, it cannot be said in our view, that the omission is among those which are curable under section 169 of CPA as submitted by Mr. Nchanila”. Again, the style of recording was among the major points of objection, but the major problem was that the statements were doctored in the sense that the statements that were sought to be admitted did not tally with the statements read during committal proceedings as per section 246 (2) of the CPA. Indeed, the statements were not curable under the provisions of section 169 of the CPA, and hence inadmissible. Upon ruling out that the statements were not admissible, there was no further attempt to tender the remaining cautioned statements and/or extra- judicial statements. The evidence concerning the 195 head of cattle alleged to have been seized from the 3rd, 4th, 5th, 6th, and 8th accused persons with the offence of murder, was unreliable. According to exhibit P2, the independent witness was PW6. An independent witness simply means a person who has no interest in the outcome of the case and is not related to either party involved in the case. As a matter of law, the evidence of an independent witness is crucial for 5 corroborating evidence and ensuring impartiality in the proceedings. The absence of an independent witness does not automatically render the Police testimony unworthy of acceptance. However, it necessitates greater scrutiny of the testimonies provided by Police officials and related witnesses. The presence of an independent witness is desirable to bolster the credibility of the Police evidence. The independent witness (PW6) James Lukuba who is a Hamlet leader of Kyamiorwa “A” told this court that there were no cows seized at Runazi. He insisted that the cows were seized at Kyamiorwa police post and were counted at Kyamiorwa Primary School playground, and the suspects who were there were three (3) only, but he did not say the said persons were among the accused persons he saw in court. PW6 identified Exhibit P2 as an exhibit he signed at Kyamiorwa Police post. PW5, PW8, PW9, and PW10 all said the cows were seized at Runazi. They have admitted that Kyamiorwa and Runazi are two different places. Furthermore, Exhibit P2 does not have the name of the officer who searched and seized the cows. No villagers were involved as independent witnesses. PW5, PW8, and PW9 said the cows seized were 195, but PW10 said that they were 196 because one cow gave birth to a calf at Runazi. Indeed, the 6 evidence by the Police officials PW5, PW8, PW9, and PW10 was not reliable, and it was not corroborated by the evidence of PW6. PW5 added that the 5th and 6th accused persons were communicating using phones, and PW5 seized the phone from the 5th accused and found that there was a text message connecting him with the offence but the two phones were not brought in court and being tendered in evidence. Worse enough, there was no printout tendered by PW5 to that effect. PW3 simply testified that 197 heads of cattle were handed over to him as the administrator of the deceased’s estate. He had no evidence to link the accused persons with the offence of murder. PW4 who alleged to have informed the police of the presence of the cows at Runazi did not link the accused persons with the offence of murder. He was not involved in the exercise of seizure or identifying the accused persons to the police as persons he accompanied to drive 195 head of cattle to Runazi or witnessed the 2nd and 7th accused persons being arrested by the police at Runazi or Mwamalasa Guest House. Furthermore, no prosecution witness said he received any information from PW4 concerning the said head of cattle. PW4 added that he used the motorcycle of the police called Rashidi and most of the time, he was 7 communicating with him (Rashidi) but Rashidi was not among the prosecution-listed witnesses, and PW4 could not even mention the phone number of the police namely Rashidi. At the closure of the prosecution case, this court directed its mind to the law and the evidence adduced by PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9, and PW10 and found that there is no cogent evidence adduced to link the 3rd, 4th, 5th, 6th, 7th, and 8th with the offence of murder. Consequently, the 3rd, 4th, 5th, 6th, 7th, and 8th accused persons were acquitted on the ground of no case to answer but the 1st and 2nd accused persons were put on their defence. It is worth noting that the court is not entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what the accused has got to say about the prosecution evidence to rule that there is a case for the accused person to answer. In Sunderji versus Republic (1971) HCD 216, it was stressed that before the accused can be called upon to make his defence the prosecution must establish at the lowest a prima facie case, and R versus Elizabeth Nduta Karanja and Another [2006] KLR Criminal Case No.52/2005, it was held among other things that without a primafacie 8 case being established, there is no legal basis for putting the accused through the trouble of defending himself. It is common knowledge that no case to answer can only be upheld; (a) when there has been no evidence to prove an essential element of the alleged offence either directly, circumstantially, or inferentially, or (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal can convict on it. I was guided by the herein above-named principles to rule that save for the 1st and 2nd accused persons, the rest of the accused persons had no case to answer. In that respect, the inevitable issue for determination is whether the prosecution has managed to prove the charge against the 1st and 2nd accused persons beyond reasonable doubt. However, in that exercise, I do not intend to reproduce the whole evidence as adduced in the Court but rather I will refer to the same when testing whether the ingredients of the offence of murder have been proved beyond reasonable doubt. 9 To sustain a conviction in criminal cases murder being one of them, the prosecution must prove the charge against the accused person (s) beyond reasonable doubt. See Section 3 (2) (a) of the Evidence Act, [Cap 6 R.E 2022] and the case of Jonas Nkize V.R [1992] TLR. As a matter of law, the onus never shifts away from the prosecution and no duty is cast on the accused person to establish his or her innocence. See Said Hemed versus Republic [1986] TLR 117. It is worth noting that every criminal offence has its fundamental elements/ ingredients. In that context, it can only be said that the case of murder has been proved beyond reasonable doubt if the court found that the prosecution had proved beyond reasonable doubt all these fundamental ingredients; firstly, the death of the deceased, secondly, that the death was unnatural, thirdly, that death was caused by an unlawful act or omission of the accused, and fourthly, that the killing was actuated by malice aforethought, and fifthly, if the charge/information involves more than one accused, whether there was a common intention. Turning to the matter at hand, the major issues for determination are as follows; Firstly, whether Davis Chiguma@ Chief died. Secondly, if the 1st issue is answered in the affirmative, whether his death was unnatural. 10 Thirdly, if the 2nd issue is answered in the affirmative, whether the death was caused by an unlawful act or omission of the accused persons. Fourthly, if the 3rd issue is answered in the affirmative, whether the killing was actuated by malice aforethought, and fifthly, whether the accused persons had a common intention. I now begin with, the 1st and 2nd issues of whether Davis Chiguma @ Chief died and if yes, whether his death was unnatural. As a matter of law, death may be proved through a post-mortem examination report, evidence of witnesses who state that they knew the deceased and attended the burial, evidence of the persons who saw the dead body, or circumstantial evidence. In the matter at hand, the postmortem report on the examination of the deceased’s body was tendered by PW1 who conducted an autopsy on 08/05/2022 after the body was identified to him by PW2, and since it was not objected to by the defense side, the report was admitted as Exhibit P1. PW1 told the court that the cause of the death was traumatic brain injury and brain Hypoxia due to lung failure secondary to drowning and hence it was an unnatural death. PW2 who is the Village Chairman told the court that he saw and identified the body after being retrieved from the swampy water. Furthermore, PW5, 11 PW8, PW9, and PW10 testified to having seen the deceased’s body at the scene of the crime. PW9 and PW10 confirmed having removed the dead body from the swampy water, and then, after examination, it was taken to Rubya. PW4 testified that he identified the body at Ruby and finally, it was handed over to them and they buried the body in Musoma. I must acknowledge that there was a contradiction on whether there was a pole tied on the deceased back. According to PW2, PW5, PW8, and PW9, there was such a pole, but evidence of PW10 is to the effect that there was no such a pole. PW10 added that the body was wrapped in nylon canvas while the rest of the witnesses did not say so. However, the contradiction did not negate the fact that Davis Chiguma@ Chief died and that his body was recovered in the swampy water. To this extent, the 1st and 2nd ingredients of the offence have been proved. This means that the prosecution has managed to prove beyond reasonable doubt that Davis Chiguma @ Chief died and that, his death was unnatural. I now move to the 3rd issue whether the death was caused by an unlawful act or omission of the accused persons. It is trite law that to sustain conviction in a murder case, the prosecution evidence must be cogent enough leaving no doubt to the criminal liability of the accused person linking 12 him/her with the offence. The prosecution, therefore, must produce credible and reliable witnesses whose evidences irresistibly point to none save only to the accused person. In the case of Mohamed Matula v. Republic [1995] TLR 3 it was held that; “Upon the charge of murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused, the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence” The guilt of the accused can be proved either by direct evidence, circumstantial, or through confessional statements of the accused. Direct evidence is what a witness says he/she saw or heard or did while circumstantial evidence is the evidence of surrounding circumstances which by un-designed coincidence is capable of proving a proposition with accuracy. The absence of direct evidence is indeed the very essence of resort to circumstantial evidence. As pointed out earlier, the prosecution featured ten (10) witnesses. However, the court has noted the following; one; none of them testified to have seen the accused persons jointly or severally killing Davis Chiguma@ Chief. Two, none of them testified to have seen the accused persons or any of them 13 throwing the deceased’s body into the swampy water. Three, none of them testified to have seen the accused persons escaping from the crime scene. Four, none of them testified to have heard any of the accused persons before the incident saying they would murder the deceased. Five, PW7 unsuccessfully tendered an extra-judicial statement of the 1st accused. PW8 unsuccessfully tendered the cautioned statement of the 1st accused, and PW9 unsuccessfully tendered the cautioned statement of the 2nd accused. The documents did not meet the test of admissibility for the reasons earlier stated. Six, the 1st and 2nd accused persons were not among the persons who signed Exhibit P2 concerning 195 head of cattle. Seven, no visitor’ book was tendered to prove that on 7/5/2022, the 2nd and 7th accused persons slept at Mwamalasa Guest House. The Guest attendant was not paraded to confirm that the 2nd and 7th accused were arrested there, but also no independent witness who came and testified that the 2nd and 7th accused persons were arrested at Mwamalasa Guest House. Eight, the cautioned statements of their co-accused were not tendered to link the 1st and 2nd accused persons with the offence of murder. In that respect, the prosecution evidence connecting the accused persons with the offense is the evidence PW5, PW8, PW9, and PW10 which is to the 14 effect that, the phone alleged to be the property of the deceased was seized from the 1st accused. Another piece of evidence by PW2, PW5, PW8, PW9, and PW10 is to the effect that the 1st and the 2nd accused persons led them to where the body was successfully recovered. In his defence the 1st accused (DW1) who testified under oath went on denying his involvement in the commission of the offence. He denied having been arrested at Katoro. He also denied having been found in possession of the phone alleged to belong to the deceased. He added that he signed Exhibit P3 by force at Kyamiorwa Police that is why there was no independent witness. He added that, if Sulum Ntemwa (6th accused) was communicating with him, the prosecution ought to have tendered the cell phone of the 6 th accused and the printout from telecommunication companies. Now, my task here is to determine whether the 1st accused has managed to prove beyond reasonable doubt whether PW5, PW8, PW9, and PW10 arrested him at Katoro and whether Exhibit P4 alleged to be the deceased’s property was seized from him at Katoro. 15 In their evidence, PW5, PW8, PW9, and PW10 testified that they went to Katoro with the 6th accused and were communicating with the 1st accused through the 6th accused phone until when he was arrested. However, there was no communication printout tendered by the prosecution to prove that the 6th accused was communicating with the 1st accused and the phone which was used by the 1st accused was Exhibit P4. The printout would have shown the phone numbers, location, and time of the call. The simple reason given by PW5 was that telecommunication companies were not cooperative but no letters tendered in court to show that they made any request to any telecommunication company. On cross-examination, PW5 said the police cannot cross the border to another Region without a movement Order. He also admitted that they had no movement order and he did not sign the visitor’s book at Katoro police post. He conceded that before arresting the 1st accused, they arrived at Katoro police post and found policemen who were on duty. On cross-examination, PW10 also admitted before arresting the 1st accused, they went to Katoro police post. On his side, PW9 said, they just went to Katoro police post around 2:00 hours to get seizure forms. 16 On his side, PW8 denied having gone to Katoro police post or any other police post at Katoro. PW8, PW9, and PW10 added that since they were with the OC-CID (PW5), there was no need for a movement order, but none of them mentioned any law or guideline to that effect. It was not even proved that the lines 062412448 and 0685083080 found in exhibit P4 with IMEI numbers:358788156385989, and 358788156385997 were registered in the name of the deceased. Considering the herein above contradictions, and the fact that there was no communication printout to prove that the 6th accused had communication but also the fact that there was no independent witness who witnessed the alleged seizure, it is the finding of this court that the 1st accused has managed to raise a reasonable doubt on whether he was arrested at Katoro and found in possession of Exhibit. According to DW1, he signed Exhibit P3 at Kyamiorwa police post, and he was arrested on 09/05/2022 and not otherwise. Another piece of evidence by PW2, PW5, PW8, PW9, and PW10 is to the effect that the 1st and the 2nd accused persons led them to where the body was successfully recovered. The evidence of PW2, PW5, PW8, PW9, and PW10 is to the effect that they were aware of the Cattle yard of the deceased 17 because it was not their first time to reach there. PW2 said that he interviewed the two accused persons before the police and they confessed to having involved themselves in the commission of the offence. It is the evidence of PW2, PW5, PW8, PW9, and PW10 that they were led by the two accused persons from the deceased’s cattle yard to the crime scene and showed them where the body was. However, both the accused persons (DW1 and DW2) denied to have led PW2, PW5, PW8, PW9, and PW10 to the scene of the crime. They both denied knowing the deceased. They both said they saw PW2 here for the first time in court when he came to testify in this case. They both testified to have met each other on 16/05/2022 when arraigned before Muleba District Court. They both denied having ever been employed by the deceased. On cross-examination, they said they had no conflicts with PW2, PW5, PW8, PW9, and PW10 because they did not know them. DW1 added that he heard the name of the deceased at Kyamiorwa Police Post. He further said that since PW10 testified that the deceased had a conflict with Patrick, probably the deceased met his death at the hands of Patrick. 18 DW1 added that PW2 did not describe how he was dressed, while DW2 testified that when PW2 was asked to identify the person here in court, he pointed his finger at the 3rd accused Bundala Shabani instead of DW2. DW2 disputed to have ever been sent to Kyamiorwa Police Post. DW1 added that he was arrested on 09/05/2022 therefore there is no way it can be said that he led the said prosecution witnesses to the crime scene on 08/05/2022. Now, the issue for determination is whether the accused persons have managed to raise reasonable doubt on whether they led PW2, PW5, PW8, PW9, and PW10 to where the body was. Indeed, the independent witness was PW2 but when asked to identify Kabigumila Theobard here in court he firmly identified the 3rd accused person. He did not identify the 2nd accused in court. PW2 failed to describe how DW1 and DW2 were dressed on the material day. I am aware of the principle articulated in the case of Goodluck Kyando vs Republic [2006] TLR 367 that every witness is entitled to credence and his or her evidence must be believed except where there are cogent reasons to hold otherwise. The fact that PW2 has identified another third accused instead of the 2nd accused and the fact that he failed to describe how DW1 19 and DW2 were dressed, PW2 cannot be believed with certainty on his evidence that DW1 and DW2 led the prosecution witnesses to the scene of the crime. PW8 testified that about 20 villagers came to the scene of the crime and witnessed the body being removed from the water. None of the said villagers were called to testify, probably they would have told the court whether they saw DW1 and DW2 at the scene of the crime. PW8 further testified that he drew the sketch map on 8/05/2022 with the help of DW1, DW2, and PW2 but Exhibit P7 does not reflect the presence of DW1 and DW1; does not show where DWI and DW2 stood when showing PW2, PW5, PW8, PW9 and PW10, the dead body or even bears their names. PW1 did not say that he saw DWI and DW2 at the scene of the crime. Indeed, the prosecution has not proved beyond reasonable doubt that DW1 and DW2 confessed their involvement in the commission of the offence and volunteered to lead the police and PW2 to where the body was. It should be noted that DW2 denied to have been arrested at Mwamalasa Guest House. He added that the prosecution's failure to bring the visitor’s book of the said Guest House or parade the Guest Attendant as a witness is 20 sufficient to show that they did not tell the truth. DW2 added that he was arrested on 06/5/2022 and matched to Muleba Police Post, therefore, there is no reason why it can be said he slept at Mwamalasa Guest House on 7/5/2022 because he was already under police custody. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the weakness of his defence. See Mohamed Haruna @ Mtupeni & Another vs Republic (Criminal Appeal 259 of 2007) [2010] TZCA 141 (04 June 2010), and Mwita and others v. Republic [1977] LRT. 54). In the matter at hand, the said strength is completely missing. Therefore, however sympathetic this court may be to the circumstances under which the life of the deceased was eliminated, the confines of the law bind accordingly because courts are not courts of sympathy but courts of law. Before I pen off, I would like to remind the investigation and prosecution machinery that criminal cases, particularly those attracting capital punishment, must be properly investigated and prosecuted. In George Lipepo and Others v The People, Criminal Appeal No. 2 of 2014, the Supreme Court of Zambia had this to say; 21 "In criminal cases, it is the responsibility of investigative agencies to thoroughly investigate the cases they bring before the court for prosecution. It is during this investigation that all relevant evidence both favorable and unfavorable to the state must be gathered. During the prosecution case, evidence gathered must be presented to the court so that it can arrive at a just decision. Failure on the part of the agencies to diligently execute the said responsibility amounts to a dereliction of duty." Similarly, in Republic vs Majaliwa William (Criminal Sessions Case 57 of 2022) [2023] TZHC 16574 (16 March 2023) Tanzlii, this Court had this to say; “It is a common understanding that when the offence is alleged to have been committed, the police has the mandate to carry out investigations with the aim of obtaining the necessary evidence that will be used in court to warrant conviction so as to punish criminals according to law. It should be noted that poor investigation leads to the acquittal of guilty individuals on one hand and the conviction of innocent parties on the other. Therefore, it goes without saying that a proper investigation into an offence helps the prosecution in proving the guilt of the accused beyond reasonable doubt and ensures that chances of convicting an innocent person are avoided. Indeed, when an 22 offence is well-investigated, the trial process becomes easier and expeditious” Ordinarily, a prosecution should not be undertaken unless there is a reasonable prospect of conviction. In other words, the prosecution side therefore must consider if there is evidence likely to be admissible, the availability, competence, credibility, and reliability of witnesses. If the available evidence does not meet the reasonable prospect of conviction standard, the decision to prosecute is not met, and the prosecution should not proceed, if charges have been laid, those charges should be withdrawn. A criminal investigation is considered to be a cornerstone on which the edifice of the Criminal Justice System is built. A poor investigation will not only result in acquittal but also wrongful conviction. However, as a general rule, it gives the benefit of the doubt to accused persons. A well-investigated case ends with a successful prosecution and vice versa. In my view, this case was poorly investigated. Serious cases like this which attract the death penalty need a serious investigation. In the upshot, I find both accused persons Nkinda Kilangi @ Fuso and Kabigumila Theobard not guilty of the offense of murder they stand charged with, and consequently, they are hereby acquitted and should be released 23 from custody forthwith unless lawfully held. The right of appeal is open to any aggrieved party. It is so ordered. Dated at Bukoba on this 29th day of November 2024. E. L. NGIGWANA JUDGE 29/11/2024 24 Delivered this 29th of November 2024 in the presence of the accused persons, Mr. Joseph Bitakwate learned counsel for the 1st accused, Mr. Lameck Erasto learned counsel for the 2nd accused, Ms. Agness Awino learned State Attorney for the Republic, Hon. A. A. Madulu-JLA, and Ms. Florentina Bitamale; B/C. E. L. NGIGWANA JUDGE 29/11/2024 25